Healthy Mothers and Healthy Babies Access to Care Act of 2003-Motion to Process

HEALTHY MOTHERS AND HEALTHY BABIES ACCESS TO CARE ACT OF 2003-MOTION TO PROCEED

Mr. CORNYN. In my own State of Texas, that passed a constitutional amendment along with implementing legislation to reduce the cost of medical liability insurance, we have seen reductions offered by medical liability carriers of 12 percent in one case and projected to be as much as a 19 percent reduction in medical liability insurance costs.

While I certainly would agree with the Senator from Illinois that reduction of errors is an important goal, would he not find a reduction of medical liability insurance rates of 12 to 19 percent one way to reduce the cost of health insurance and health care generally, in a way that would benefit the public generally?

Mr. DURBIN. I thank the Senator from Texas. I am aware of his State's experience. I am not an expert on it, but I read a little bit about it.

I will say to him I will be citing some statistics in the course of my remarks that will show that the caps on recovery for victims of medical negligence have reduced premiums in some States but not in others. It is an unpredictable outcome, when you reduce the exposure of a doctor for his malpractice, as to whether or not the cost of medical malpractice premiums goes down.

I would further say to the Senator from Texas, if our goal is simply to reduce medical malpractice premiums, frankly, we could stop people from suing in court. We could basically say you can't go to a courthouse if you are a victim. Malpractice insurance would cease to exist in that case.

What we are trying to do here is find a balance, a balance that is just and fair and says if you are an innocent victim of medical negligence, you are entitled to a day in court and a reasonable recovery. That doesn't mean you can come in and expect punitive damages in every instance, or some enormous verdict in every instance, but we should be able to say that if you are a victim, you will be able to recover a reasonable amount for your injuries.

I say to the Senator from Texas, in this bill, this jury of the Senate has decided that we know the maximum amount any woman or baby should be entitled to recover in a medical malpractice action for noneconomic losses. We are saying here that, regardless of the facts, regardless of the culpability of the doctor, regardless of the circumstances, regardless of how serious the injury is, the maximum amount which the jury of the Senate will render in verdict for the victim is $250,000 for pain, suffering, and disfigurement.

I say to my friend from Texas, there are some who say that is just the price you have to pay; if you want to keep malpractice premiums down, you are going to have to say in some circumstances there is going to be an outcome that makes us feel a little uncomfortable. I am going to give examples of specific cases where $250,000 in pain and suffering is not even close to compensating the family and the child who are the victims of malpractice in these OB/GYN circumstances.

Mr. CORNYN. Will the Senator yield for a further question?

Mr. DURBIN. I am happy to yield without yielding the floor.

Mr. CORNYN. The Senator from Illinois makes an important point, and that is there will invariably be one or two, perhaps, cases, or a handful of cases, or an example you can point to where a $250,000 limit on noneconomic damages might seem to be too low. But would the Senator agree that what we are trying to do is use a rather indirect means to try to accomplish a greater good for the patients who are denied access to health care?

For example, in 154 of the 254 counties in my State, a woman cannot find a baby doctor to deliver her baby because of the cost of malpractice insurance. Many obstetricians simply decide to give up and retire or to move someplace else where malpractice liability rates are lower.

While the Senator no doubt can find an example where the amount is lower than a jury perhaps might award, why shouldn't we take a step in the direction of bringing some predictability and thus bringing some reasonableness in reducing the rates for liability insurance so people can have access to doctors where they live?

Mr. DURBIN. The Senator from Texas makes an excellent point. I think that is the reason, I would say to my colleague, why once this bill is defeated-and I hope it is defeated-once it is defeated, we really have a responsibility here.

We come from different sides of the political spectrum. We are about as far apart as they come in this Chamber in terms of our political philosophy, but I think we both can see there has a been problem. The medical malpractice premiums in parts of your State and parts of my State have reached record high levels. These premiums are forcing my good doctors in Illinois to retire, move away to another State or to an area that is friendlier when it comes to the cost of the premiums. There is a denial of coverage. There is a denial of services to a lot of poor people in Texas, Illinois, and a lot of other States.

Shouldn't we come together instead of a take it or leave it bill that has never been referred to the Senate Judiciary Committee, never been the subject of a hearing, does not address issues of medical safety and other issues we can agree should be part of this conversation? Shouldn't we at the end of this debate on this bill sit down and honestly try, on a bipartisan basis, to find common ground and compromise that would serve the goal the Senator is suggesting, the greater good, to make sure these good doctors across America will be there when we need them?

I thank the Senator from Texas.

Mr. CORNYN. If the Senator will yield for a final question.

Mr. DURBIN. I am happy to yield.

Mr. CORNYN. I appreciate the spirit in which the comments are offered by the Senator from Illinois, because this is a subject where we do need to have a rational debate. Unfortunately, because we cannot get 60 votes to allow the floor debate and actually vote, we are engaging in a hypothetical exercise.

Wouldn't the Senator from Illinois deem it important for this body to have a realistic, rational debate and ultimately vote to see what the will of this body and the people we represent is when it comes to trying to get some handle on reducing the costs of liability insurance so more mothers can have access to obstetricians and more people can have access to health insurance by reducing health insurance costs?

Mr. DURBIN. I agree with the Senator from Texas. I thank him for his comments which I believe are good-faith comments.

In my rank on this side, I do not set the calendar of how bills are determined; your leader, Senator Frist, does that. I suggest the best place to start is not on the floor of the Senate but for a group, on a bipartisan basis, to try to come up with an honest answer to this issue and bring it to the floor and stand together to try to pass this bill in a responsible way. Simply bringing a bill, take it or leave it, a few days, no committee hearings, does not serve the needs we are addressing.

I see a few other colleagues on the floor so I will go through a few points quickly and return to the Senate later in the day if there is an opportunity.

This particular bill does not address the problems of malpractice premiums in an honest fashion. The problem with malpractice premiums is a cyclical insurance problem. We have had crises before with high premiums in the 1970s and 1980s. Many States passed changes in the law to address this, some in tort reform and some in insurance reform.

This bill does not even look at the insurance companies that are offering medical malpractice insurance. What it is basically saying is that we are not even going to ask the question as to whether these companies are overcharging doctors and hospitals. Instead, we are going to say that the only culprits, the only people who are at fault in this conversation, are the victims of medical malpractice. They are the ones who have to tighten their belt, take fewer dollars. We will not even consider in 2061 asking that the insurance companies be held accountable for their own conduct and ask whether they are gouging us when it comes to prices.

How can we have an honest discussion of the medical malpractice issue without addressing medical safety, without asking these important questions of the insurance company?

This bill does not address frivolous lawsuits. The proponents of tort reform claim frivolous lawsuits are at the root of the problem. This bill does not do anything to cut down on the number of such suits but only punishes those who make it to court.

Keep this in mind: If a lawsuit is worth $250,000 in noneconomic losses, which is the maximum under this bill, this is a lawsuit where the plaintiff clearly has a cause of action which a jury or judge has decided is a worthy cause of action worth compensation. These are not frivolous lawsuits that would have $250,000 in noneconomic losses. Something happened. A patient went to a hospital or to a doctor and was injured wrongly.

This bill is saying we are not going to address frivolous lawsuits. We will basically say those who are entitled to recover are limited in the amount they can recovery.

One of the worst parts of this bill, we will hear arguments in the Senate that we need OB/GYNs across America and without these doctors to deliver babies we will be at a disadvantage. Frankly, no one can argue with that. But when we read the bill, it is about more than doctors. This bill, like the last one we considered last year, has been expanded to provide protection against lawsuits filed against pharmaceutical companies and medical device companies.

We are finding, time and again in the Senate, whatever the issue, the Republican side of the aisle insists there be at least one provision in every bill that is going to benefit the drug companies of America. In this situation they are saying these drug companies should not be held accountable for the damages and injuries caused by their products involved in OB/GYN practice.

Why would we do this? Why would we decide we are going to exempt them from exposure, liability, and accountability for some of the drugs and devices that are being used across America that cause injury to innocent people? That is exactly what they do.

Let me give some examples of the types of litigation that would have been eliminated by this bill, had it been in law. The Dalkon Shield was an IUD on the market in the early 1970s and caused thousands of women to suffer miscarriages, loss of their female organs, and infertility. It took eight punitive damage awards to force the manager of the Dalkon Shield to finally recall the product. It was not a law passed by Congress. It was a lawsuit filed against the company because of their dangerous product; 400,000 claims were eventually filed against A.H. Robins, the manufacturer of Dalkon Shields. Evidence established that Robins, the device company, knew that its IUD was associated with high rates of pelvic disease and septic abortion and that this company had misled doctors about the device's safety and had dropped or concealed studies on the device.

Why in the world we would protect this brand of reckless, irresponsible corporate behavior with this bill? The honest answer is because politically the pharmaceutical companies and the medical device companies have a death grip on this Congress. They get what they want. We saw that when we considered the prescription drug bill for seniors and we are seeing it again. There is not a bill that comes through here, not one that passes through the traffic in the Senate, where somebody is not looking for a way to increase the profits and reduce the liability of pharmaceutical companies. This is a further illustration of it.

There are other things I could point out, drugs or devices that have been used. Let me give one from the State of Georgia. A&A Medical, a Georgia-based manufacturer of OB/GYN devices such as forceps, failed to sterilize tens of thousands of devices from 1999 to 2002, posing life-threatening injuries to women. Former staff of this company told FDA investigators that sterile and nonsterile devices were routinely shipped in the same batches. A month after urging the company to voluntarily recall its products, the FDA seized and destroyed the company's inventory. The owners of A&A Medical left the country after the seizure.

These are the kinds of companies we are trying to protect with this bill? This is not a question about whether a doctor could deliver a baby in Texas, Connecticut, Ohio, or Alabama. It is a question about whether or not these companies will be held accountable for their wrongdoing.

There is an approach that can be used and should be used that can bring a positive outcome. Senator Lindsey Graham from the State of South Carolina and I have introduced bipartisan legislation. We have worked to try to include in this legislation the key elements that we think are necessary for medical malpractice reform. Let me tell you what they include.

First, dealing with medical safety, establish a voluntary system to share medical error information among providers and patient safety organizations. The information shared will be immune from legal discovery so there is some transparency in what occurs but no liability, so a greater likelihood they would exchange information.

Also, consistent with the Institute of Medicine, the bill creates a new center for quality improvement. We provide immediate relief for doctors and hospitals.

If there is one point I make, it is this: If Senators are hearing back home that medical malpractice premiums are too high and that you should vote for this bill, keep in mind what Senator Ensign of Nevada said in the debate we had a few months ago on a similar bill. Capping noneconomic losses will not reduce medical malpractice premiums for doctors for 4 to 6 to 8 years. Why? Because there is a long tail of liability. Doctors' acts today that constitute negligence can result in court suits tomorrow, next year, and for years to come when those injuries are finally discovered. If we cap noneconomic losses today, there will not be a relief for doctors in their medical malpractice premiums for years to come.

Senator Graham and I considered that and said we have to deal with this directly. And dealing with it directly means offering a tax credit, particularly to those doctors in specialties where the premiums have gone too high. Doctors today deduct the cost of medical malpractice premiums from their business expenses.

We would go further and offer to doctors and hospitals a tax credit when their premiums skyrocket. That is the only reasonable way to provide immediate relief. We have given tax breaks to a lot of wealthy people across America under this Bush administration. Why can't we, when it comes to the medical professionals, say they should have a tax credit so that skyrocketing premiums do not force them out of business into retirement or to move their practice?

In our legislation, we reduce frivolous lawsuits. We put in the Durbin-Graham bill penalties for attorneys who file frivolous lawsuits: The first time, damages; the second time, even more expense; and the third time we would subject them to losing their license to practice law for a frivolous lawsuit. There is no reason any doctor or any person, for that matter, should be subjected to a lawsuit which ties them up at great expense, costs their insurance company money, and raises their premiums when, in fact, that lawsuit is frivolous. There are few of these, but there should be none. We think there should be a penalty for those who take advantage.

We also stop any competitive activities by insurers under the McCarran-Ferguson Act, and we provide resources to help hard-hit areas of doctor shortages, particularly rural and inner-city areas, through the Department of Health and Human Services.

We also address the issue of reinsurance. This is a topic we never talk about. Most medical malpractice premiums are charged against the initial liability which is usually in the range of $1 million, and then the umbrella policy which covers all the damages which might exceed $1 million. Then companies are brought in, reinsurance companies, that sell the original insurance policy. These are the areas where we believe there is a need for reform.

Reinsurance costs are about 28 percent of medical malpractice premiums. Their prices swing widely. They are mainly international corporations subjected to little regulation. Frankly, since September 11, reinsurance costs have gone up dramatically across America.

As this chart illustrates, this is Hurricane Andrew; reinsurance costs spiked in America. Then they went back down again. This is 9/11. After 9/11, reinsurance costs have gone up. So why are these medical malpractice insurance companies charging higher premiums? Part of it is the cost of reinsurance. Senator Graham and I address this and believe that we should create a Federal fund which deals with reinsurance, where there would be contributions from doctors, hospitals, and health care professionals, and we can see some stability in the amount that is charged.

This situation we have before us is clear. Caps don't work. This chart shows the percentage increase in median premiums for medical malpractice from 1991 to 2002, the States without caps, no limitations on recoveries in verdicts, and the States with caps are shown in red. You can see that Arizona, New York, Georgia, and Washington, with no caps, had very modest increases in malpractice premiums.

Take a look at California, which has a $250,000 cap, Kansas, Utah, and Louisiana. In this period of time, malpractice premiums went up dramatically in the States with the caps. There is little or no correlation between the caps and the fact that malpractice premiums are going up.

Look at these OB/GYN insurance premiums in damage cap States versus noncap States in 2003: In California, a State with caps, there was a 54-percent increase in OB/GYN premiums with caps in place at the State level; in Oregon, zero percent increase; against the State of Washington, California, 15 percent, State of Washington, zero percent; Colorado, 29 percent with caps, Georgia, only 10 percent without caps; New Mexico, 52 percent increase in OB/GYN medical malpractice premiums with caps, and in the State of Arizona, 14 percent. It is an illustration that you just can't rely on these caps to bring down malpractice premiums for many years, if at all, and in many cases not at all.

Look at the percentage increase in median premiums: States with caps, 48 percent between 1991 and 2002; States without caps, 36 percent.

This is an important issue that needs to be addressed. I see my colleagues waiting. I will yield the floor but return later in the debate.

I hope my colleagues will understand that we have a serious national problem that needs to be addressed, but we should not address it in a way that is partial, that does not do justice to the serious challenges we face. We need to reduce medical errors. We need to hold insurance companies accountable. We need to bring about tort reform which stops frivolous lawsuits. We need to move into the area of tax credits for doctors now-not 4, 6, and 8 years from now-so they can pay their malpractice premiums and do it in a fashion that is fair-fair to the people who have been injured and fair to the medical professionals who are so important to all of our communities.

I yield the floor.